The ‘Heart’ of Health Care Reform: Can the Law Stand Without a Mandate?

Paul Clement, centre right, with blue tie and brown briefcase, who argued on behalf of the 26 states challenging the federal health care law before the Supreme Court, departs with a group of state attorneys general after the third and final day of legal arguments before the U.S. Supreme Court in Washington, March 28, 2012.

During the summer of 2009, when the health care reform debate was dividing the country and the “public option” seemed like the most important policy issue in a generation, the proposal to require all Americans to have health insurance was hardly ever mentioned. The individual mandate, now the focus of a historic Supreme Court review, was just one part of a complex and broad overhaul of the nation’s health care system. Medicare cuts, end-of-life counseling and a tax on high-cost “Cadillac” health insurance plans were a few of the provisions that attracted far more attention—and criticism.

Despite flying under the radar for so long, the individual mandate is now being described by critics as the foundation on which the entire new health care law rests. Thanks to a constitutional challenge, the mandate’s future is in peril. Although the High Court won’t rule until June and predicting its decision is impossible for even the most seasoned experts, a Supreme Court hearing on Tuesday over the requirement’s constitutionality left many health reform supporters worried it might not survive. If it falls and the rest of the law remains, however, chaos could follow, along with a host of unintended consequences like skyrocketing health insurance costs and even less access to coverage than exists today.

Paul Clement, a lawyer representing 26 states and a small business trade association, argued before the Supreme Court on Wednesday that the entire law, which reorganizes one-sixth of the U.S. economy, must fall if the individual mandate can’t pass constitutional muster. Taking the opposite stance, a court-appointment attorney, H. Bartow Farr, argued the Affordable Care Act should be left to stand as is, even without the mandate. Meanwhile, the federal government’s lawyer, Deputy Solicitor General Edwin Kneedler, argued that two major insurance reforms—to end discrimination based on pre-existing conditions and premium pricing based on health—are too closely linked to the mandate to exist without it. Those must go if the mandate falls, Kneedler said, but the rest of the law should live on.

So what’s likely to happen? One possible outcome is that the individual mandate is upheld as constitutional, which would make Wednesday’s debate moot. If the Court comes down against the mandate, however, it must then grapple with the interdependency of the law’s parts and Congress’s intentions when it crafted the Affordable Care Act.

Justice Sonia Sotomayor, of the court’s liberal wing, began the questioning during Wednesday’s session by suggesting that even if nixing the individual mandate would cause collateral damage, it is a problem for Congress to solve, not one for the High Court to head off. “Why don’t we let Congress fix it?” she asked.

Clement, arguing for the states, said federal lawmakers surely would not have wanted the Affordable Care Act to continue in dysfunction without an individual mandate, operating in a way at odds with the goals of the original law. Therefore, he said, it should be wholly struck down, leaving a “blank slate” for Congress to start over again to better address the crisis of rising health care costs. But the health care law is filled with a myriad of measures, some of which have nothing to do with the individual mandate or even health insurance. In what he called a “total off-the-cuff impression,” Justice Stephen Breyer, of the court’s liberal bloc, pointed out that provisions encouraging breastfeeding, aiding coal miners with black lung, placing doctors in under-served areas and requiring restaurants to publish calorie counts on menus are all elements of the Affordable Care Act unrelated to the individual mandate. Justice Ruth Bader Ginsburg, also left-leaning, pointed to a reauthorization of funding for the Indian Health Services as one such element of the law. Should these just be discarded, Breyer asked.

Clement responded that if the mandate and provisions “tied at the hip” to the mandate are struck from the bill, all that remains is “a hollow shell” or items “on the periphery” of substantive health care reform. Justice Antonin Scalia, of the court’s conservative wing, appeared to agree. “My approach would say if you take the heart out of the statute, the statute’s gone,” he said.

The justices also engaged in a line of questioning about how the court could decipher which pieces of the health care law Congress would have wanted to pass, with or without the individual mandate. This is a fraught exercise, as Chief Justice John Roberts noted:

This was a piece of legislation, which, there was — had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote. Put in the Indian health care provision and I will vote for the other 2,700 pages. Put in the Black Lung provision, and I’ll go along with it. That’s why all — many of these provisions, I think, were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together the votes to get it through.

Justice Elena Kagan said there was no use trying “to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street,” referring to Capitol Hill. “Instead, we look at the text that’s actually given to us.”

This is easier said than done. Drawing hearty laughter from those in the court room, Scalia cited the Eighth Amendment, which bans “cruel and unusual punishment,” and said it was ridiculous to expect the justices to go through the Affordable Care Act line by line, determining which provisions might be related to the individual mandate.

You really want us to go through these 2,700 pages?…Do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?… Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?

Justice Samuel Alito, also a conservative justice, said it may be impossible to figure out which Affordable Care Act provisions could remain if the mandate is struck. “Once you’ve cut the guts out of it, who knows, who knows which of them were really desired by Congress on their own and which ones weren’t?”

The government’s lawyer, Kneedler, argued that the text of the Affordable Care Act draws a bright line between the individual mandate, insurance reforms and the rest of the law despite its complexity. That led Roberts to ask, “How do you know that? Where is this line?” Kneedler contended that the authors of the health care law explicitly said the mandate was “essential” to the health insurance reforms, but did not make this distinction for any other provisions.

Determining what—if anything—Congress might have done differently on health reform if the individual mandate had not been under consideration is very close to impossible. This predicament could ultimately limit the justices’ options. If the mandate falls, the court may decide it has no choice but to leave the rest of the law intact or strike it altogether.

The possibility of the Affordable Care Act’s total demise seems real after this week’s arguments, a scenario that has left supporters of health reform befuddled and nervous. A fatal blow removing the legitimacy of President Obama’s signature legislative achievement just months before Election Day could damage his political fortunes. On the other hand, if the court upholds the law, either mostly or entirely, accusations that Obama has undertaken an unprecedented expansion of federal government could be deflated.

The justices will soon likely take a preliminary secret vote on where they stand on these issues. Debate among them will continue over the next several months and a final decision is expected in June.